Orissa High Court
Chhayakant Acharya vs Samitav Pani on 4 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC NO.1218 OF 2023
(From the order dated 9th February, 2023 passed by learned
Judicial Magistrate First Class, Kendrapara in I.C.C.,
No.303/2020)
Chhayakant Acharya
... Petitioner
-versus-
Samitav Pani ... Opposite Party
Advocates appeared in the case through hybrid mode:
For Petitioner: Mr.Suryakanta Dash,
Advocate
-versus-
For Opp.Party: None
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
04.5.2023.
Sashikanta Mishra,J. The Petitioner is facing trial in I.C.C.
No.303/2020 pending in the Court of learned J.M.F.C.,
Kendrapara instituted on the basis of a complaint filed
by the present Opposite Party No.2 under Section 138
of the N.I. Act. In the present application filed under
Section 482 of the Cr.P.C., he seeks to challenge the
order dated 9th February, 2023 passed by the Court
below in allowing the application filed by the
complainant to amend his complaint petition as well as
his evidence affidavit.
2. The facts, relevant only to decide the present case
are that the Opposite Party has filed the
aforementioned complaint in the Court below claiming
therein that the accused-Petitioner had taken a sum of
Rs.6,60,000/- from him with assurance to return the
same within 15 days. However, he did not repay the
amount and after much persuasion he issued a cheque
bearing No.018496 dated 16th October, 2020
amounting to Rs.7,20,000/-. The said cheque, when
presented at the Bank was dishounoured on 19th
October, 2020 on the ground of insufficient funds. The
complainant therefore, issued a legal notice to the
accused to pay the amount, but the same not having
been paid, he filed the complaint.
3. In course of hearing and after examination of the
complainant and another witnesses, the complainant
filed a petition purportedly under Order 6, Rule 17 of
C.P.C. with prayer to amend the complaint petition as
well as his evidence affidavit. It was specifically
claimed that the figure Rs.7,20,000/- should be
mentioned in the 5th line of Col. No.7(a) of the
complaint petition and the figure Rs.6,60,000/- should
be deleted. Similarly, in the evidence affidavit also the
aforementioned figures were to be changed.
4. The Petitioner filed a written objection basically
taking the stand that the proposed amendment would
change the nature and character of the case thereby
causing serious prejudice to him.
5. The Court below however, allowed the Petition.
6. Heard Mr. S., Dash, learned counsel for the
Petitioner. Despite vaslid service of notice, there was
no appearance from the side of the Opposite Party.
7. Mr. Dash has argued that the case of the
complainant is that he had taken Rs.6,60,000/-
against which the Petitioner-accused had issued a
cheque of Rs.7,20,000/-. On such basis he had served
legal notice and filed the complaint petition. He also
laid evidence in this regard. Now, by seeking to change
the amount to Rs.7,20,000/-, the complainant
obviously wants to garner higher benefits.
8. Reading of the legal notice issued on 2nd
November, 2020 by the complainant's Advocate
reveals that the accused had taken a sum of
Rs.6,60,000/- with the assurance of repaying within
15 days. Ultimately he issued a cheque for
Rs.7,20,000/-, which came to be dishounoured. The
complaint was filed exactly on the same facts. The
complainant adduced his evidence in the form of an
affidavit also stating the same facts. He was cross-
examined by the accused on such basis. Thereafter, he
filed the petition taking the stand that the mentioning
of Rs.6,60,000/- in the complaint petition as being the
amount of loan taken by the accused was wrongly
typed. This Court fails to understand as to how this
can be treated as a typographical error when the legal
notice itself mentions the loan amount as
Rs.6,60,000/-. Moreover, the complainant in his
evidence affidavit has also stated that a sum of
Rs.6,60,000/- was taken by the Petitioner on 30th
November, 2019. He was cross-examined on such
statement on oath. Moreover, he stated in his evidence
affidavit that the same was drafted as per his dictation
and after understanding its contents, he had put his
signature on it. Again in cross-examination he
admitted to have stated that he had given
Rs.6,60,000/- to the accused. Thus, it is seen that in
all the materials on record including the primary
document, i.e. the legal notice, the amount of loan is
stated to be Rs.6,60,000/-. It is not forthcoming as to
why Rs.7,20,000/- was paid by way of cheque if the
loan amount was Rs.6,60,000/-. Nevertheless, facts
remains that the loan amount cannot undergo a
change because the same forms the very basis of the
complaint. This would certainly change the very nature
and character of the case. Obviously, the complainant
cannot be permitted to change the very foundation of
his case midway during trial.
9. The reasoning adopted by the Court below that if
the case ends in acquittal, the accused would not be
liable to pay a single penny to the complainant, but if
the case ends in conviction then the accused will be
liable to pay the cheque amount is fallacious and
hence, untenable. It cannot be believed that the so-
called typographical error in the complaint petition
came to the notice of the complainant only after he had
adduced evidence in the case.
10. For the forgoing reasons therefore, this Court
holds that the impugned order cannot be sustained in
the eye of law. Resultantly, the CRLMC is allowed.
The impugned order is hereby set aside.
ASHOK KUMAR Digitally signed by ASHOK
KUMAR BEHERA
..................................
BEHERA Date: 2023.05.04 18:38:10
+05'30'
(Sashikanta Mishra)
Judge
Ashok Kumar Behera
Ashok Kumar Behera
